IN THE COURT OF APPEALS OF NORTH CAROLINA

Nos. COA19-533, COA19-534

Filed: 31 December 2020

Harnett County, Nos. 17 CVS 363, 17 CVS 1361

ANDERSON CREEK PARTNERS, L.P.; ANDERSON CREEK INN, LLC; 

ANDERSON CREEK DEVELOPERS, LLC; FAIRWAY POINT, LLC; STONE 

CROSS, LLC d/b/a STONE CROSS ESTATES, LLC; RALPH HUFF HOLDINGS, 

LLC; WOODSHIRE PARTNERS, LLC; CRESTVIEW DEVELOPMENT, LLC; 

OAKMONT DEVELOPMENT PARTNERS, LLC; WELLCO CONTRACTORS, INC.; 

NORTH SOUTH PROPERTIES, LLC; W.S. WELLONS CORPORATION; ROLLING

SPRINGS WATER COMPANY, INC.; and STAFFORD LAND COMPANY, INC., 

Plaintiffs,

v.

COUNTY OF HARNETT, Defendant.

PF DEVELOPMENT GROUP, LLC, Plaintiff,

 v.

COUNTY OF HARNETT, Defendant.

Consolidated appeal by Plaintiffs from order entered 26 November 2018 by 

Judge Michael J. O’Foghludha in Superior Court, Harnett County. Heard in the 

Court of Appeals 6 February 2020.

Ferguson, Hayes, Hawkins & Demay, PLLC, by James R. DeMay, and 

Scarbrough & Scarbrough, PLLC, by James E. Scarbrough, Madeline J. 

Trilling, and John F. Scarbrough, for Plaintiffs-Appellants.

Fox Rothschild LLP, by Kip David Nelson, Bradley M. Risinger, and Troy D. 

Shelton, and Christopher Appel, for Defendant-Appellee.

McGEE, Chief Judge.
ANDERSON CREEK PARTNERS, L.P., V. COUNTY OF HARNETT 

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Plaintiffs Anderson Creek Partners, L.P., et al. (“Anderson Creek”), and PF 

Development Group, LLC (“PF Development”) (together, the “Developers”), each 

brought suit seeking refunds for fees paid to Defendant Harnett County (the 

“County”) for water and sewer services “to be furnished” to their future real estate 

developments. Each of the two cases was designated to be an exceptional civil case 

and the two cases were consolidated for a single decision in the trial court, as well as 

consolidated for appeal to this Court.

The Developers appeal from the 26 November 2018 order of the trial court 

granting the County’s motion for judgment on the pleadings. The Developers contend 

that (1) the trial court erred by taking judicial notice of an interlocal agreement 

between the County and its water and sewer districts; (2) the pleadings presented 

material issues of fact with respect to whether the County was authorized to charge 

fees for services “to be furnished;” and (3) the pleadings presented a viable 

unconstitutional conditions claim. 

We hold (1) that the trial court did not err in taking judicial notice of the 

interlocal agreements because the agreements are public documents; (2) there were 

no issues of material fact in the pleadings with respect to whether the County had 

authority to charge prospective fees; and (3) the capacity use fees collected by the 

County are not subject to review under the unconstitutional conditions doctrine. We

affirm the trial court’s order.
ANDERSON CREEK PARTNERS, L.P., V. COUNTY OF HARNETT 

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I. Factual and Procedural Background

A. Interlocal Agreements and Assessment of Fees

The Harnett County Board of Commissioners created a water and sewer 

district in Buies Creek (the “Buies Creek District”) to collect wastewater within the 

district. The County and the Buies Creek District entered into an interlocal 

agreement in 1984 (the “1984 Buies Creek Agreement”), whereby the County agreed 

to operate the Buies Creek District’s water and sewer system. The 1984 Buies Creek 

Agreement was the subject of the North Carolina Supreme Court decision in McNeill 

v. Harnett County, 327 N.C. 552, 398 S.E.2d 475 (1990). In McNeil, the North 

Carolina Supreme Court held that counties could lawfully enter into and act upon an 

interlocal agreement to operate a water and sewer system on behalf of a water and 

sewer district, and could exercise the water and sewer district’s “rights, powers, and 

functions” in carrying out those operations. Id. at 559–60, 398 S.E.2d at 479.

By 1998, the County created eight water and sewer districts (the “Districts”)

to manage wastewater across its entire jurisdiction. The County and the Districts 

then entered into a joint interlocal agreement in May 1998 (the “1998 Agreement”), 

whereby the County agreed to administer the Districts’ water and sewer systems. 

Per the 1998 Agreement, the County and the Districts agreed that the County would 

lease the Districts’ property; the Districts would transfer their intangible assets to 

the County; the County would assume most of the Districts’ liabilities; and the 
ANDERSON CREEK PARTNERS, L.P., V. COUNTY OF HARNETT 

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County would “administer all operations and maintenance” of the Districts’ water 

and sewer systems.

The County then incorporated its duties under the 1998 Agreement into the 

Harnett County Water and Sewer Ordinance (the “Ordinance”). See Harnett County, 

N.C., Water and Sewer Ordinance (July 1, 2016) [hereinafter, Ordinance]. Pursuant 

to section 28(h) of the Ordinance, the County charges landowners “capacity use” fees 

(the “Fees”) for future water or sewer service as a mandatory condition prior to the 

County issuing approvals and/or permits for developments to real property. 

Ordinance § 28(h). The Fees for a single-family residential lot are a one-time, nonnegotiable payment of $1,000 for water and $1,200 for sewer. Ordinance § 28(h).

B. Anderson Creek’s Case

The Developers each sought to build a number of residences in the County in 

or around 2017. Cumulatively, the County required the Developers to pay over 

$25,000 in Fees prior to issuing its approval for the Developers’ proposed plans.

Anderson Creek filed a complaint against the County on 1 March 2017. The 

complaint initially alleged six claims for relief, requesting:

(1) a declaration that the Ordinance and Fees were 

unlawful because the County exceeded its authority under 

N.C. Gen. Stat. § 153-277 in adopting and enforcing the 

Ordinance and Fees, and/or because the Fees lacked an 

“essential nexus” and “rough proportionality” to the impact 

of the proposed developments on the County’s water and 

sewer systems; 
ANDERSON CREEK PARTNERS, L.P., V. COUNTY OF HARNETT 

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(2) a declaration that the Ordinance and Fees violated the 

Developers’ rights to equal protection and substantive due 

process under Article I, Section 19 of the North Carolina 

Constitution; 

(3) a refund to the Developers of all fees exacted by the 

County, together with interest at the rate of 6% per annum 

pursuant to N.C. Gen. Stat. § 153A-324; 

(4) an award of costs, expenses, and attorneys’ fees 

pursuant to N.C. Gen. Stat. § 6-21.7 and/or other applicable 

law;

(5) an accounting of all fees exacted by the County from the 

Developers; and 

(6) an order allowing any future Fees required to be paid 

into escrow pending the litigation resolution.

The County filed an amended1 answer, counterclaims, and motion for sanctions 

in response to Anderson Creek’s complaint on 19 May 2017. Anderson Creek then 

filed a motion to amend its complaint on 23 August 2017. The trial court granted the 

motion, and Anderson Creek filed an amendment to its complaint asserting a seventh 

and eighth claim for relief: 

(7) alleging that the County breached the terms of a 4 April 

2018 agreement with Anderson Creek, specifically; and

(8) requesting a declaration regarding the severability of a 

provision of the agreement with Anderson Creek relating 

to the payment of fees from Anderson Creek’s development

properties.

 

1 The County’s original answer, counterclaims, and motion for sanctions is not included in the 

record on appeal.
ANDERSON CREEK PARTNERS, L.P., V. COUNTY OF HARNETT 

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The Anderson Creek case was designated an exceptional civil case under Rule 

2.1 of the General Rules of Practice for the Superior and District Courts on 27 

September 2017 and was reassigned to another Superior Court Judge in Chatham 

County.

The County filed an answer and counterclaim in response to Anderson Creek’s

amended complaint on 1 February 2018.2 The County’s counterclaim requested a 

declaration that the 1998 Agreement gave the County authority to collect fees

through the Ordinance.

On 12 February 2018, the County filed a Rule 12(c) motion for judgment on the 

pleadings as to claims 1 through 6 and 8 of Anderson Creek’s amended complaint,

and filed a motion to join necessary parties or, in the alternative, motion for 

permissive joinder of parties. The County attached to its motions the 1984 Buies 

Creek Agreement at issue in McNeill, as well as the subsequent 1998 Agreement. 

The motions were heard at the 6 August 2018 civil session of Chatham County, 

Superior Court.

C. PF Development’s Case

 

2 The record indicates that the trial court did not grant Anderson Creek’s motion to amend its 

complaint until 22 February 2018 and that Anderson Creek’s amended complaint was not filed until 

16 March 2018. According to these filing dates, the County filed its answer, counterclaims, and motion 

for judgment on the pleadings in response to Anderson Creek’s amended complaint over one week 

before the trial court granted the motion to amend and over a month before the amended complaint 

was filed. Nevertheless, the County’s answer, counterclaims, and motions evidence its receipt of the 

amended complaint and the parties do not bring any arguments regarding the timeliness or 

authenticity of the amended complaint.
ANDERSON CREEK PARTNERS, L.P., V. COUNTY OF HARNETT 

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PF Development’s complaint was filed against the County on 19 July 2017. Six 

claims for relief were alleged in PF Development’s complaint. These claims were 

identical to the claims raised in Anderson’s Creek initial complaint. The County filed 

an answer denying the material allegations of the complaint and a counterclaim for 

declaratory relief on 9 October 2017. PF Development filed a reply to the 

counterclaim on 9 November 2017.

The County filed a Rule 12(c) motion for judgment on the pleadings as to all 

six of PF Development’s claims, and a motion to join necessary parties or, in the 

alternative, motion for permissive joinder of parties on 12 February 2018. The PF 

Development case was designated an exceptional civil case on 4 October 2018 and 

also reassigned to the same Superior Court Judge in Chatham County.

D. Consolidation for Decision and Appeal

The Developers initially filed a motion to consolidate their cases before the trial 

court on 30 January 2018. After consideration of the pleadings, arguments of counsel

at the 6 August 2018 hearing in Anderson Creek’s case, and materials submitted to 

the trial court, the trial court informed the Developers that the County’s Rule 12(c) 

motion would be partially allowed in Anderson Creek’s case. The Developers again 

filed a joint consent motion to consolidate their cases with the trial court on 5 October

2018. The trial court entered an order granting the consent motion to consolidate on 

26 November 2018. The parties to the PF Development case elected to accept the 
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result of the Anderson Creek case and did not request additional oral argument for 

PF Development’s case.

On 26 November 2018, the trial court entered an order (the “Consolidated 

Order”) resolving each case, granting: (1) in the Anderson Creek case, the County’s 

motion for judgment on the pleadings on claims 1 through 6 and 8 and dismissing 

each with prejudice; and (2) in the PF Development case, the County’s motion for 

judgment on the pleadings on all claims and dismissing all with prejudice. The 

Consolidated Order noted that the court had “taken judicial notice of public 

documents appended to [the County’s] Rule 12(c) Motion [] which are May 1998 and 

July 1984 Agreements entered into among and between [the County] and other North 

Carolina governmental units that are relevant to the matters involved in this action.” 

The Consolidated Order also stated that the County’s motions to join necessary 

parties or, in the alternative, motions for permissive joinder of parties in each of the 

Developers’ cases were moot based on its decision. The Developers filed a 

consolidated notice of appeal on 21 December 2018.

II. Analysis

A. Judicial Notice of Public Contracts

We first address the Developers’ argument that the trial court erred by (1) 

taking judicial notice of the 1984 Buies Creek Agreement and the 1998 Agreement, 

each of which the County attached to its motion for judgment on the pleadings, and 
ANDERSON CREEK PARTNERS, L.P., V. COUNTY OF HARNETT 

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(2) considering the documents in the determination of its Consent Order. The 

Developers contend that the Consent Order is, “in essence, a motion for summary 

judgment by ambush” because they were not “afford[ed] an opportunity to reasonably 

confront these documents.” Essentially, the Developers claim that they were unduly 

surprised by the County’s presentation of the agreements, and placed in the 

“untenable position” of having to “defend matters external to the allegations of their 

Complaint[.]” We disagree.

The Developers are correct that “[i]f, on a motion for judgment on the 

pleadings, matters outside the pleadings are presented to and not excluded by the 

court, the motion shall be treated as one for summary judgment and disposed of as 

provided in Rule 56[.]” N.C. Gen. Stat. § 1A-1, Rule 12 (2017). However, in deciding 

a Rule 12(c) motion for judgment on the pleadings, our Court has held that “courts 

must consider the complaint in its entirety, as well as other sources courts ordinarily 

examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents 

incorporated into the complaint by reference, and matters of which a court may take 

judicial notice.” QUB Studios, LLC, v. Marsh, 262 N.C. App. 251, 260, 822 S.E.2d 

113, 120–21 (2018) (emphasis added) (adopting the United States Supreme Court’s 

language in Tellabs, Inc., v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 168 L.

Ed. 2d 179, 193 (2007)). To be clear, a court may take judicial notice of matters 
ANDERSON CREEK PARTNERS, L.P., V. COUNTY OF HARNETT 

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outside the pleadings, where appropriate, without causing the proceeding to convert 

from a Rule 12(c) motion to one for summary judgment under Rule 56. Id.

Judicial notice is appropriate where a fact is “not subject to reasonable dispute

in that it is either (1) generally known within the territorial jurisdiction of the trial 

court or (2) capable of accurate and ready determination by resort to sources whose 

accuracy cannot reasonably be questioned.” N.C. Gen. Stat. § 8C-1, Rule 201 (2017). 

North Carolina Courts have long held that “important public documents will be 

judicially noticed.” State ex rel. Utils. Comm’n v. S. Bell Tel. & Tel. Co., 289 N.C. 286, 

287, 221 S.E.2d 322, 323 (1976) (citing Staton v. Atl. Coast Line Rail Co., 144 N.C. 

135, 145, 56 S.E. 794, 797 (1907)). “Important public documents” in this context have 

been held to include, among other things, a Utilities Commission order modifying a 

joint venture agreement, Town of Midland v. Morris, 209 N.C. App. 208, 214, 704 

S.E.2d 329, 335 (2011); a vehicle insurance classification scheme composed by the 

North Carolina Rate Bureau, State ex rel. Com’r of Ins. v. N.C. Auto. Rate Admin. 

Office, 293 N.C. 365, 381, 239 S.E.2d 48, 58 (1977); and contractual agreements 

between a Native American tribe and both the state government and private entities, 

Hatcher v. Harrah’s N.C. Casino Co., LLC, 169 N.C. App. 151, 154, 610 S.E.2d 210, 

212 (2005). “[A] trial court’s decision concerning judicial notice will not be overturned 

absent an abuse of discretion.” Muteff v. Invacare Corp., 218 N.C. App. 558, 568, 721 

S.E.2d 379, 386 (2012) (citation omitted).
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The 1984 Buies Creek Agreement and the 1998 Agreement are public contracts 

between government entities, Harnett County and its municipal water and sewer 

districts. See N.C. Gen. Stat. § 132-1 (2017) (defining documents created by 

municipalities, counties, and special districts “in connection with the transaction of 

public business” to be public records). These documents are subject to public review, 

N.C. Gen. Stat. § 132-1, and their existence is therefore “not subject to reasonable 

dispute.” The agreements are important public documents germane to the resolution 

of this case; indeed, some of the Developers reference—or even incorporate—the 1998 

Agreement in their pleadings. The Developers’ position was far from “untenable.” 

The trial court took judicial notice of the existence of the agreements and of the 

language therein, then interpreted that language as a matter of law. It was, 

therefore, not an abuse of discretion for the trial court to take judicial notice of the 

1984 Buies Creek Agreement and the 1998 Agreement and to consider the documents 

in its review of the parties’ pleadings.

B. Preemptive Collection of Fees

The Developers primarily contend that the trial court erred in granting the 

County’s motion for judgment on the pleadings because the pleadings presented 

material issues of fact with respect to whether the County had authorization to 

prospectively collect fees for water and sewer services “to be furnished” in the future. 
ANDERSON CREEK PARTNERS, L.P., V. COUNTY OF HARNETT 

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We hold that the County had authority to collect prospective fees by virtue of the 1998 

Agreement.

i. Standard of Review

“We review de novo a trial court’s order granting a motion for judgment on the 

pleadings under Rule of Civil Procedure 12(c).” Tully v. City of Wilmington, 370 N.C. 

527, 532, 810 S.E.2d 208, 213 (2018) (citation omitted). The moving party must show 

that, after considering all well-pleaded factual allegations in the nonmoving party’s 

pleadings as true, “no material issue of fact exists and that he is entitled to judgment 

as a matter of law.” Id. A defendant moving for judgment on the pleadings must 

prove, essentially, that the plaintiff’s pleadings “fail[] to allege facts sufficient to state 

a cause of action or admit[] facts which constitute a complete legal bar to a cause of 

action.” CommScope Credit Union v. Butler & Burke, LLP, 369 N.C. 48, 51–52, 790 

S.E.2d 657, 659–60 (2016) (citations and quotation marks omitted).

This case also requires our review of two interlocal agreements between the 

parties. “Generally, ‘the purport of a written instrument is to be gathered from its 

four corners, and the four corners are to be ascertained from the language used in the 

instrument.’” China Grove 152, LLC, v. Town of China Grove, 242 N.C. App. 1, 9, 773 

S.E.2d 566, 572 (2015) (citation omitted).

ii. Authorization to Collect Prospective Fees
ANDERSON CREEK PARTNERS, L.P., V. COUNTY OF HARNETT 

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A clear understanding of the question before us first requires discussion of the 

statutes and seminal cases which comprise the relevant fee-collecting authority of the 

municipal entities involved. Municipalities are entities born purely from “legislative 

will” and have no authority or powers apart from those given to them by the General 

Assembly. Lutterloh v. City of Fayetteville, 149 N.C. 65, 69, 62 S.E. 758, 760 (1908)

(citations omitted). The General Assembly allows for the creation of municipalities 

and expressly delegates powers and authorities to them via enabling statutes. N.C. 

Const. art. VII, § 1; Lanvale Props., LLC, v. County of Cabarrus, 366 N.C. 142, 150, 

731 S.E.2d 800, 807 (2012) (citations omitted). Acts taken by a municipality that 

extend beyond the scope of the powers and authorities statutorily granted to it are 

void. City of Asheville v. Herbert, 190 N.C. 732, 735, 130 S.E. 861, 863 (1925)

(citations omitted).

When the Developers sought development permits in early 2017, the County 

had the statutory authority only to collect fees for past and present “services 

furnished.” The governing statute then stated:

A county may establish and revise from time to time

schedules of rents, rates, fees, charges, and penalties for 

the use of or the services furnished by a public enterprise.

N.C. Gen. Stat. § 153A-277(a) (2015) (emphasis added). 

The North Carolina Supreme Court held that a nearly identical statute 

regarding the fee-collecting authorities of cities did not authorize the collection of 
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prospective impact fees in its 2016 decision in Quality Built Homes Inc. v. Town of 

Carthage, 369 N.C. 15, 789 S.E.2d 454 (2016). In Quality Built Homes, the town of 

Carthage required developers to pay a progressively scaling fee prior to final approval 

of the developers’ plats and building permits. Id. at 17, 789 S.E.2d at 456. Carthage 

claimed authority to charge these prospective fees under N.C. Gen. Stat. § 160A-314, 

which then read:

A city may establish and revise from time to time schedules 

of rents, rates, fees, charges, and penalties for the use of or 

the services furnished by a public enterprise.

N.C. Gen. Stat. § 160A-314 (2015) (emphasis added). Our Supreme Court held the 

plain language of N.C. Gen. Stat. § 160A-314 “clearly and unambiguously 

empower[ed] Carthage to charge for the contemporaneous use of water and sewer 

services—not to collect fees for future [] spending.” Id. at 20, 789 S.E.2d at 458

(emphasis added) (citation omitted). The statute’s provisions were “operative in the 

present tense.” Id.

Our Court addressed similar language enabling a utilities commission to 

collect fees in Kidd Construction Group, LLC, v. Greenville Utilities Commission, ___ 

N.C. App. ___, 845 S.E.2d 797 (2020). In Kidd, the Greenville Utilities Commission

(the “GUC”), a local government entity created by our General Assembly to provide 

water and sewer services to Pitt County, collected prospective capacity fees “as a 

precondition to development approval, to the issuance of building permits, and to 
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receiving service.” Id. at ___, 845 S.E.2d at 799. The charter establishing creation of 

the GUC and outlining its powers authorized the GUC to “fix uniform rates for all 

services rendered[.]” Id. at ___, 845 S.E.2d at 801. This Court held that the operative 

language in GUC’s charter was “functionally equivalent” and “nearly identical” to the 

enabling language at issue in Quality Built Homes, and “also fail[ed] to confer 

prospective charging authority by lacking the critical ‘to be’ language.” Id. (“Just as 

the ‘services furnished’ language did not empower Carthage to impose impact fees 

prior to any service being provided, so too does ‘services rendered’ fail to empower 

GUC to impose impact fees on builders and developers as a condition of final 

development approval.” (citation omitted)).

The only difference between the text of N.C. Gen. Stat. § 160A-314 reviewed in 

Quality Built Homes and the text of N.C. Gen. Stat. § 153A-277(a) subject to our 

review in this case is the substitution of the word “city” for “county.” We interpret 

the nearly identical, plain language of N.C. Gen. Stat. § 153A-277(a) in the same 

manner. N.C. Gen. Stat. § 153A-277(a) authorized the County only to assess fees for 

the “contemporaneous use” of its water and sewer systems, and otherwise “clearly 

and unambiguously fail[ed] to give [the County] the essential prospective charging 

power necessary to assess [the Fees].” Quality Built Homes, 369 N.C. at 22, 789 

S.E.2d at 459.
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In response to the Quality Built Homes decision, our General Assembly 

modified both N.C. Gen. Stat. § 153A-277(a) and N.C. Gen. Stat. § 160A-314 to 

authorize counties and cities to collect fees for “services furnished or to be furnished 

by any public enterprise.” N.C. Gen. Stat. § 153A-277(a) (2019); N.C. Gen. Stat. § 

160A-314 (2019). The General Assembly thus amended each statute to permit the 

prospective fee-collecting acts complained of here. The amended language of N.C. 

Gen. Stat. § 153A-277(a) became effective 1 October 2017; however, the General 

Assembly specified that “[n]othing in th[e] act provides retroactive authority for any 

system development fee, or any similar fee for water or sewer services to be furnished, 

collected by a local governmental unit prior to October 1, 2017.” PUBLIC WATER 

AND SEWER SYSTEM DEVELOPMENT FEE ACT, 2017 North Carolina Laws S.L. 

2017-138 (H.B. 436).

The Districts, on the other hand, were authorized to collect prospective fees in 

2016. Each of the Districts involved in this case are water and sewer districts created 

under chapter 162A of the North Carolina General Statutes and governed by the 

Harnett County Board of Commissioners. Water and sewer districts are bodies 

corporate and politic which are and were, at all times relevant to this case, authorized 

to “contract and be contracted with” and to “establish, revise and collect rates, fees or 

other charges and penalties for the use of or the services furnished or to be 

furnished[.]” N.C. Gen. Stat. § 162A-88 (2015) (emphasis added). Unlike the versions 
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of N.C. Gen. Stat. §§ 153A-277 and 160A-314 in effect when the Developers were 

required to pay the Fees, N.C. Gen. Stat. § 162A-88 “included the language ‘services 

furnished and to be furnished’ and thus ‘plainly allowed the charge for prospective 

services[.]’” Kidd, ___ N.C. App. at ___, 845 S.E.2d at 800 (quoting Quality Built 

Homes, 369 N.C. at 20, 789 S.E.2d at 458) (distinguishing N.C. Gen. Stat. § 160A-314 

(2015) and N.C. Gen. Stat. § 162A-88 (2015)).

Additionally, local government entities may generally cooperate through 

interlocal agreements to carry out their purposes. See N.C. Gen. Stat. §§ 153A-275, 

153A-278 (2015). Our Supreme Court has made it clear that a county may contract 

with another local government entity to enable the county to exercise authority given 

to that entity. Specifically, this issue has been addressed with respect to the County 

and its water and sewer districts. In McNeil v. Harnett County, our Supreme Court

held that the 1984 Buies Creek Agreement—the prior interlocal agreement between 

the County and the Buies Creek District, one of the Districts in this case—properly 

enabled the County to exercise all “rights, powers, and functions granted to water 

and sewer districts as found in N.C.G.S. § 162A-88[.]” McNeill, 327 N.C. at 559, 398 

S.E.2d at 479.

At all times relevant to this action, counties did not have the authority to 

collect prospective fees themselves. However, the Districts each had the authority to 

collect prospective fees and were free to contract with the County to enable the 
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County to collect prospective fees by exercising the statutory authority of the 

Districts. Therefore, the only way the County could have had the authority to charge 

any prospective fees would be pursuant to an interlocal agreement through which the 

County could exercise authority held by the Districts.3

iii. Issues of Fact

Having explained that the County may only collect fees for services “to be 

furnished” by virtue of an interlocal agreement granting such rights, the question 

before this Court is whether the 1998 Agreement did grant the County the Districts’

authority to collect prospective fees under N.C. Gen. Stat. § 162A-88.

In McNeil, our Supreme Court held that the County could lawfully enter into 

and act under an interlocal agreement to operate a water and sewer system on behalf 

of its water and sewer districts:

[P]ursuant to an interlocal cooperative agreement and 

pursuant to authority granted in article 15 of chapter 

153A, a county may, among other things, operate a water 

and/or sewer system for and on behalf of another unit of 

local government, such as a water and sewer district, and 

in conjunction therewith may exercise those rights, powers, 

and functions granted to water and sewer districts as found 

in N.C.G.S. § 162A-88 and those rights, powers, and 

 

3 We note that the impact fees charged in Quality Built Homes were assessed on a progressively 

scaling basis, whereas the Fees charged by the County in the present case are flat and non-negotiable 

charges which the County deems “capacity use” fees. This difference is not material to our 

consideration of the County’s prospective fee-collecting authority. The Fees charged by the County 

here are “not assessed at the time of actual use, but are payable in full at the time of final subdivision 

plat approval—a time when water, sewer, or other infrastructure might not have been built and only 

a recorded plat exists” and “requir[e] [the County] to invoke prospective charging power” for future 

services. Quality Built Homes, 369 N.C. at 21, 789 S.E.2d at 458–59 (quotation marks and brackets 

omitted).
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functions granted to counties in N.C.G.S. ch. 153A, art. 15.

McNeil, 327 N.C. at 559, 398 S.E.2d at 479. The McNeil Court recognized that the 

County and the Buies Creek District had entered into the 1984 Buies Creek

Agreement “on 23 July 1984 wherein it was agreed that the [Buies Creek District’s]

sewer system, which had been completed that year, would be operated by Harnett 

County through its Department of Public Utilities.” Id. The McNeil Court held that, 

pursuant to the 1984 Buies Creek Agreement, the County was “clothed” with “those 

powers granted to the [Buies Creek District] in N.C.G.S. § 162A-88[,]” as well as 

“those powers set forth in chapter 153A, article 15 of the General Statutes[.]” Id. 

Therefore, the 1984 Buies Creek Agreement granted the County the power, among 

other things, to “establish, revise and collect rates, fees or other charges and penalties 

for the use of or the services furnished or to be furnished by any sanitary sewer 

system, water system or sanitary sewer and water system” and to “exercise those 

powers[.]” N.C. Gen. Stat. § 162A-88 (emphasis added); McNeil, 327 N.C. at 559, 398

S.E.2d at 479.

The terms of the 1984 Buies Creek Agreement stated, in relevant part, that 

the County and the Buies Creek District “agreed to enter into [the] contract for . . . 

the operation of the wastewater collection system as a County operated sewer and 

wastewater collection system[.]” The contract provided that a newly constructed 

“wastewater treatment plant owned by the County” would be operated by the County 
ANDERSON CREEK PARTNERS, L.P., V. COUNTY OF HARNETT 

Opinion of the Court

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to serve the sewer and wastewater needs of the Buies Creek District. In so doing, the 

County was “entitled to fund or cause to be funded the construction of any sewer line 

to be connected to the [Buies Creek District’s] system as an extension . . . for the 

purpose of serving needy users with wastewater utility services[.]” Notably, the 1984 

Buies Creek Agreement made no direct reference to N.C. Gen. Stat. § 162A-88.

The 1998 Agreement provides the County with substantially the same rights

as it was granted in the 1984 Buies Creek Agreement and more clearly incorporates 

the Districts’ prospective fee-collecting authority. The 1998 Agreement opens by 

acknowledging that it exists pursuant to statutory authority, which includes a 

number of statutes “[w]ithout limitation.” The enumerated statutory authorities 

include the authority of “two or more . . . units of local government [to] cooperate” in 

the “joint provision of enterprisory services” as granted by N.C. Gen. Stat. § 153A278. The 1998 Agreement then expressly recognizes that the Districts have the 

ability to assess fees for “services furnished or to be furnished” pursuant to N.C. Gen. 

Stat. § 162A-88. In a section labeled “Purpose of the Agreement,” the 1998 Agreement 

states that its purpose is to “provide a cost efficient method for the administration, 

operation, maintenance and expansion of water and . . . wastewater services to each 

of the Districts through [the County’s] Department of Public Utilities.” Like the 1984 

Buies Creek Agreement, the 1998 Agreement does not make a specific reference to 

the County’s receipt of the Districts’ authority to collect prospective fees, but does 
ANDERSON CREEK PARTNERS, L.P., V. COUNTY OF HARNETT 

Opinion of the Court

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wholly acknowledge an intent between the parties to have the County step into the 

Districts’ shoes to efficiently provide water and sewer services throughout each 

District. We therefore hold that the 1998 Agreement granted the County the ability 

to exercise the Districts’ prospective fee-collecting authority, and that the pleadings 

failed to present a material issue of fact regarding the County’s authority to collect 

prospective fees.

The Developers’ argue that this case turns, instead, on a different issue: 

whether the pleadings show a material issue of fact regarding how the County 

assessed the Fees, either by managing the Districts’ infrastructure or by operating 

its own county infrastructure. In the Developers’ view, this case presents a “complex 

puzzle regarding the Ordinance, the Fees, and the true relationship of the County 

and the Districts in the provision of water and sewer service.” The Developers 

contend the County had no authority to collect the Fees because “[t]he clear inference 

from the [1998 Agreement] is that the County is operating its own, countywide water 

and sewer system—not the systems of the Districts.”

We disagree with the Developers’ statement of the issue in this case. The 

pleadings may show an issue of fact with respect to whose infrastructure the County 

used to assess the Fees, and whether the District even maintained any water and 

sewer system of its own, but these issues are not material to the resolution of this 

case. Regardless of whether the County is operating its own physical water and sewer 
ANDERSON CREEK PARTNERS, L.P., V. COUNTY OF HARNETT 

Opinion of the Court

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infrastructure, the Districts’ infrastructure, infrastructure it acquired from the 

Districts, or a combination thereof, the issue is whether the County had the authority 

to use any means to assess prospective fees for water and sewer services to be 

furnished in the future.4 Indeed, the McNeil Court found that the County had this 

authority where the 1984 Buies Creek Agreement specified that the County would 

operate a “wastewater treatment plant owned by the County” and a “wastewater 

treatment facility owned by the County[,]” which were located within the boundaries 

of the Buies Creek District and thereafter referred to as “the [Buies Creek District’s] 

wastewater collection system” and “the [Buies Creek District’s] wastewater 

treatment facility[.]” It was immaterial to the holding of McNeil that the County 

owned the infrastructure used. We hold that the 1998 Agreement gave the County 

the rights to exercise the Districts’ fee-collecting authority—by any legal means—and 

therefore affirm the Consolidated Order.

 

4 After hearing arguments from counsel regarding the County’s motion for judgment on the 

pleadings, the trial court properly understood the issue in this case to be the same:

Legally, it doesn’t matter how they do it; legally, it matters can they 

legally do it? But, how they do it doesn’t matter. Isn’t that kind of 

irrelevant? 

. . . .

They have to have the authority, but, as long as they continue to have 

the authority, that’s—that’s the legal threshold issue.

. . . .

[T]he threshold issue for me to decide in this case is whether the [1998 

Agreement] is legally—legally different than the [1984 Buies Creek 

Agreement] and whether the [1998 Agreement] is not done pursuant to 

[N.C. Gen. Stat. § 162A].

(Emphasis added).
ANDERSON CREEK PARTNERS, L.P., V. COUNTY OF HARNETT 

Opinion of the Court

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C. Unconstitutional Conditions Doctrine

Lastly, the Developers argue that the pleadings presented a material issue of 

fact of whether assessment of the Fees constituted an unconstitutional condition

under the United States Supreme Court’s decision in Koontz v. St. Johns River Water 

Management District, 570 U.S. 595, 186 L. Ed. 2d 697 (2013). The Developers’

pleadings claim that, assuming the County had the authority to assess the Fees, the 

Fees were nonetheless an unconstitutional condition on the exercise of their property 

rights. Thus, this Court is asked to determine whether a generally applicable fee 

assessed as a condition precedent to approval of a land-use permit warrants review 

under the “unconstitutional conditions doctrine.” For the reasons below, we hold that 

it does not and further affirm the Consolidated Order.

The “unconstitutional conditions doctrine” rests on the principle that “the 

government may not deny a benefit to a person because he exercises a constitutional 

right,” Regan v. Taxation With Representation of Wash., 461 U.S. 540, 545, 76 L. Ed.

2d 129, 136–37 (1983) (citation omitted), and works to “vindicate[] the Constitution’s 

enumerated rights by preventing the government from coercing people into giving 

them up[,]” Koontz, 570 U.S. at 604, 186 L. Ed. 2d at 708. The United States Supreme 

Court has held that the unconstitutional conditions doctrine is particularly relevant 

in the context of the land-use permitting process, as landowners are especially

vulnerable to the government’s broad discretion in imposing potentially 
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Opinion of the Court

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“[e]xtortionate demands” on the grant of land-use permits. Koontz, 570 U.S. at 605, 

186 L. Ed. 2d at 708. Government conditions that request the landowner deed land 

as an easement or designate a portion of his or her land for a particular use “can 

pressure an owner into voluntarily giving up property for which the Fifth Amendment 

would otherwise require just compensation.” Id.; U.S. Const. amend. V. However, 

where a landowner’s proposed use of real property “threaten[s] to impose costs on the 

public” the government may constitutionally require the landowner to “internalize 

the negative externalities of their conduct” and make contributions of real property 

or finances to mitigate the public costs imposed. Id.

The Supreme Court recognized these competing realities in Nollan v. 

California Coastal Commission, 483 U.S. 825, 97 L. Ed. 2d 677 (1987), and Dolan v. 

City of Tigard, 512 U.S. 374, 129 L. Ed. 2d 304 (1994). In Nollan and Dolan, the 

Court ruled that the government is allowed to condition approval of land-use permits 

by requiring the landowner to mitigate the impact of his or her proposed use. Dolan, 

512 U.S. at 391, 129 L. Ed. 2d at 320; Nollan, 438 U.S. at 837, 97 L. Ed. 2d at 689. 

The government may require that the landowner agree to a particular public use of 

the landowner’s real property, as long as there is an “essential nexus” and “rough 

proportionality” between the public impact of the landowner’s proposed developments 

and the government’s requirements. Dolan, 512 U.S. at 391, 129 L. Ed. 2d at 320;

Nollan, 438 U.S. at 837, 97 L. Ed. 2d at 689. 
ANDERSON CREEK PARTNERS, L.P., V. COUNTY OF HARNETT 

Opinion of the Court

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In Koontz, the Court extended the application of Nollan/Dolan’s “essential 

nexus” and “rough proportionality” requirements to government demands for 

monetary contributions where there is a “direct link between the government’s 

demand and a specific parcel of real property.” Koontz, 570 U.S. at 614, 186 L. Ed. 

2d at 714 (footnote omitted). The plaintiff in Koontz was required to obtain a 

Wetlands Resource Management Permit before he could make improvements to his 

property which would, among other impacts, raise the elevation of the improved 

property. Id. at 599–602, 186 L. Ed. 2d at 704–06. The plaintiff offered to deed a 

portion of his property as a conservation easement to the water district to mitigate 

the environmental impact of his proposed improvements. Id. The water district 

considered the plaintiff’s offer inadequate, and refused to grant the plaintiff’s permit 

unless he either (1) agreed to increase the amount of property encumbered by the 

proposed conservation easement, or, in the alternative, (2) to deed the conservation 

easement as offered and to also pay for environmental improvements to districtowned real property several miles away. Id. The Koontz Court held that the district’s 

second condition also warranted Nollan/Dolan review because such demands for 

money operated, essentially, “in lieu of” relinquishments of real property rights, were 

therefore “functionally equivalent to other types of land use exactions[,]” and 

accomplished the same diminution in the landowner’s property rights: the landowner 
ANDERSON CREEK PARTNERS, L.P., V. COUNTY OF HARNETT 

Opinion of the Court

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could comply with the request, or be denied the right to use his or real property in 

the desired way. Id. at 612, 186 L. Ed. 2d at 713.

In the case before us, the County assessed the Fees as a condition precedent to 

its approval of the Developers’ building permits; if the Developers declined to pay the 

Fees, the County would have denied the Developers’ permission to begin their desired 

construction projects. The Fees in this case were categorized as impact fees and 

referred to as “capacity use fees,” despite the County’s requirement that the fees be 

paid prior to approval of a developer’s permits. 

The Koontz Court stressed that taxes and fees do not trigger review under the 

unconstitutional conditions doctrine, and stated: “It is beyond dispute that ‘[t]axes 

and user fees . . . are not “takings.”’” Id. at 615, 186 L. Ed. 2d at 715 (citation omitted). 

The Koontz Court explained that its holding did “not affect the ability of governments 

to impose property taxes, user fees, and similar laws and regulations that may impose 

financial burdens on landowners.” Id. But the Koontz Court otherwise provided little

guidance on how courts should tread the fine line between unconstitutional exactions 

and constitutional, routine taxes and fees. See Michael B. Kent, Jr., Viewing the 

Supreme Court’s Exactions Cases Through the Prism of Anti-Evasion, 87 U. COLO. L.

REV. 827, 871 (2016); Adam Lovelady, The Koontz Decision and Implications for 

Development Exactions, Coates’ Canons: N.C. Local Government Law Blog (Dec. 17, 

2020), https://canons.sog.unc.edu/the-koontz-decision-and-implications-for-
ANDERSON CREEK PARTNERS, L.P., V. COUNTY OF HARNETT 

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development-exactions/ (opining that the majority opinion in Koontz did not provide 

a clear test for distinguishing permissible taxes and fees from potentially 

unconstitutional exactions). Indeed, the dissenting justices in Koontz warned that 

the majority’s decision extended the “notoriously ‘difficult’ and ‘perplexing’

standards” of the Fifth Amendment Takings Clause “into the very heart of local landuse regulation and service delivery[,]” including the levy of fees to “cover the direct 

costs of providing services like sewage or water to [a] development.” Koontz, 570 U.S. 

at 626, 186 L. Ed. 2d at 722 (Kagan, J., dissenting) (citations omitted). The dissenting 

justices concluded that these fees—such as the Fees at issue in the present case—

“now must meet Nollan and Dolan’s nexus and proportionality tests.” Id. at 627, 186 

L. Ed. 2d at 722.

Neither party in this case briefed any North Carolina precedent, and our own 

review has found no precedent, which speaks directly to the application of the 

unconstitutional conditions doctrine to monetary exactions in North Carolina. Cf. 

Homebuilders Ass’n of Charlotte, Inc., v. City of Charlotte, 336 N.C. 37, 46, 442 S.E.2d 

45, 51 (1994) (assessing the legality of the city’s user fees without reviewing their 

constitutionality); River Birch Assocs. v. City of Raleigh, 326 N.C. 100, 120–22, 388 

S.E.2d 538, 550–51 (1990) (applying Nollan and holding no constitutional taking 

occurred where the city required a dedication of real property as condition precedent 

to permit approval, but the plaintiff’s permit was denied for other valid reasons). At 
ANDERSON CREEK PARTNERS, L.P., V. COUNTY OF HARNETT 

Opinion of the Court

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a minimum, this is the first time North Carolina appellate courts have been asked to 

address this issue since the United States Supreme Court decided Koontz in 2013. 

This Court most closely addressed the constitutionality of government 

exactions in any form as takings in its 1989 decision in Franklin Road Properties v. 

City of Raleigh, 94 N.C. App. 731, 381 S.E.2d 487 (1989). In Franklin Road, the city 

of Raleigh refused to issue building permits for a subdivision requested by the 

plaintiff because the plaintiff would not comply with city ordinances which required 

the plaintiff to “dedicate and pave a portion of its property as part of [a] right-of-way” 

prior to approval of a building permit. Franklin Rd., 94 N.C. App. at 734, 381 S.E.2d 

at 489. The plaintiff sued seeking a declaratory judgment of its rights with respect 

to the city ordinances, and the trial court granted summary judgment to the 

defendant city of Raleigh. Id. This Court reviewed the constitutionality of the city 

ordinance’s requirement that the plaintiff dedicate a portion of its land as a public 

right-of-way. Id. 

The Franklin Road Court concluded that the city ordinance was an “exaction” 

which required constitutional scrutiny under North Carolina’s “rational nexus” test,

adopted only six months earlier in the 1989 opinion of Batch v. Town of Chapel Hill, 

92 N.C. App. 601, 376 S.E.2d 22 (1989), rev’d, 326 N.C. 1, 387 S.E.2d 655 (1990). Id.

at 737, 381 S.E.2d at 491. The Franklin Road Court explained:

In [a] portion of our opinion in Batch we concluded that the 

town’s requirement that plaintiff dedicate a portion of her 
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Opinion of the Court

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property as a right-of-way for the proposed [parkway] was 

an “exaction.” In defining “exaction” we stated:

[A]n exaction is a condition of development permission that 

requires a public facility or improvement to be provided at 

the developer’s expense. Most exactions fall into one of four 

categories: (1) requirements that land be dedicated for 

street rights-of-way, parks, or utility easements and the 

like; (2) requirements that improvements be constructed or 

installed on land so dedicated; (3) requirements that fees 

be paid in lieu of compliance with dedication or 

improvement provisions; and (4) requirements that 

developers pay “impact” or “facility” fees reflecting their 

respective prorated shares of the cost of providing new 

roads, utility systems, parks, and similar facilities serving 

the entire area.

We further stated that “Not all exactions are constitutional 

takings.” To aid a trial court in determining whether an 

exaction is an unconstitutional taking, we adopted the 

following rational nexus test:

To determine whether an exaction amounts to an 

unconstitutional taking, the court shall: (1) identify the 

condition imposed; (2) identify the regulation which caused 

the condition to be imposed; (3) determine whether the 

regulation substantially advances a legitimate state 

interest. If the regulation substantially advances a 

legitimate state interest, the court shall then determine (4) 

whether the condition imposed advances that interest; and

(5) whether the condition imposed is proportionally related 

to the impact of the development.

Id. at 736, 381 S.E.2d at 490 (emphasis added) (citing Batch, 92 N.C. App. at 613–14, 

621, 376 S.E.2d at 30, 34).

Notably, though, the North Carolina Supreme Court reversed Batch a year 

later, holding that the Town of Chapel Hill properly denied the plaintiff’s request for 
ANDERSON CREEK PARTNERS, L.P., V. COUNTY OF HARNETT 

Opinion of the Court

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a subdivision building permit because the permit failed to comply with town 

ordinances requiring permits to contemplate coordination with the town’s 

transportation plans. Batch v. Town of Chapel Hill, 326 N.C. 1, 13, 387 S.E.2d 655, 

663 (1990). Based on this holding, the Court declined to address any other reason 

why the permit was or may have been denied, and, particularly, did “not find it 

necessary to review or decide any of [the] plaintiff’s constitutional claims or other 

issues arising upon her complaint.” Id. at 13, 14, 387 S.E.2d at 663.

As a result, North Carolina law in regard to exactions as takings is without 

foundation and has not been updated following Dolan and Koontz. The definition of 

“exaction” and the “rational nexus” test presented in Franklin Road (and derived 

from the Court of Appeals decision in Batch) were developed after the United States 

Supreme Court decided Nollan, but prior to its decisions in Dolan and Koontz. 

Nonetheless, Franklin Road addressed potentially unconstitutional exactions in 

North Carolina by employing a “rational nexus” test which in many ways mirrors the 

“essential nexus” and “rough proportionality” requirements of Nollan/Dolan, and 

which also preemptively addressed Koontz’s later extension of those requirements to 

monetary exactions “in lieu of” physical takings of land or as recompensation for the 

impact of a proposed development.

The Developers cite to decisions from other states that have issued rulings 

regarding the thin line between unconstitutional exactions and constitutional user 
ANDERSON CREEK PARTNERS, L.P., V. COUNTY OF HARNETT 

Opinion of the Court

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fees. However, we find most of these cases unpersuasive because they involve these

courts’ attempts to apply the real property-focused decisions in Nollan/Dolan alone 

to exactions and fees, prior to the United States Supreme Court’s decision in Koontz. 

See Home Builders Ass’n of Dayton & the Miami Valley v. City of Beavercreek, 729 

N.E.2d 349, 356 (Ohio 2000); Trimen Dev. Co. v. King Cty., 877 P.2d 187, 194 (Wash. 

1994); N. Ill. Home Builders Ass’n, Inc. v. Cty. of Du Page, 621 N.E.2d 1012, 1020 (Ill. 

App. Ct. 1993), aff’d in part, rev’d in part, 649 N.E.2d 384 (Ill. 1995). These cases 

were part of the pre-Koontz division of authority over whether a demand for money 

could give rise to an unconstitutional conditions claim under Nollan/Dolan—a 

division which Koontz settled in the affirmative. See Koontz, 570 U.S. at 603, 186 L. 

Ed. 2d at 707. 

The most persuasive case cited by the parties is the 2018 decision of Maryland’s 

highest court in Dabbs v. Anne Arundel County, 182 A.3d 798 (Md. 2018), which cites 

to Koontz in holding that a generally applicable fee does not invoke the 

unconstitutional conditions doctrine. In Dabbs, the plaintiffs sought refunds for 

impact fees paid to their county in connection with real estate developments; the fees 

were collected to facilitate future improvements to transportation and education 

infrastructure within the county. Id. at 801–02. The impact fees at issue were 

“legislatively-imposed[,] predetermined, based on a specific monetary schedule, and 

applie[d] to any person wishing to develop property in the district.” Id. at 811. The 
ANDERSON CREEK PARTNERS, L.P., V. COUNTY OF HARNETT 

Opinion of the Court

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plaintiffs argued that the impact fees were takings subject to the “essential nexus” 

and “rough proportionality” requirements of Nollan/Dolan. Id. at 807–08. The 

Dabbs Court acknowledged that Koontz extended the protections of Nollan/Dolan to 

instances where there is a “‘direct link between the government’s demand and a 

specific parcel of real property[,]’” but noted Koontz’s insistence that “‘taxes [and] user 

fees . . . that may impose financial burdens on [land]owners’” are not takings under 

Nollan/Dolan. Id. at 809–10 (citing Koontz, 570 U.S. at 614, 615, 186 L. Ed. 2d at 

714, 715). 

The Dabbs Court held that the impact fees were not subject to scrutiny under 

Nollan/Dolan because, “[u]nlike Koontz, the Ordinance [did] not direct a [land]owner

to make a conditional monetary payment to obtain approval of an application for a 

permit of any particular kind, nor [did] it impose the condition on a particularized or 

discretionary basis.” Id. at 811 (citation omitted). Instead, the ordinance at issue in 

Dabbs “applied on a generalized district-wide basis, making no determination as to 

whether an actual permit will issue to a payor individual with a property interest.” 

Id. (citing Koontz, 570 U.S. at 628, 186 L. Ed. 2d at 723 (Kagan, J., dissenting)

(commenting that the majority’s holding should apply “only to permitting fees that 

are imposed ad hoc, and not to fees that are generally applicable”)). The Dabbs Court 

further based its decision on its understanding that Dolan recognized that impact 

fees “imposed on a generally applicable basis are not subject to a rough 
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Opinion of the Court

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proportionality or nexus analysis.” Id. (citing Dolan, 512 U.S. at 385, 129 L. Ed. 2d 

at 316).

We find the holding of Dabbs persuasive and find it in harmony with both the 

United States Supreme Court’s decision in Koontz and the definition of “exaction” 

employed by this Court in Franklin Road. In Franklin Road, this Court defined 

“exaction” to include fees assessed “in lieu of compliance with dedication or 

improvement provisions” or fees “reflecting [developers’] respective prorated shares 

of the cost of providing new [infrastructure.]” Franklin Rd., 94 N.C. App. at 736, 381 

S.E.2d at 490. This definition did not include fees assessed on a generally applicable 

basis in a static quantity indifferent to the particular developers’ prorated share of 

any resulting impact. We hold that impact and user fees which are imposed by a 

municipality to mitigate the impact of a developer’s use of property, which are 

generally imposed upon all developers of real property located within that 

municipality’s geographic jurisdiction, and which are consistently imposed in a 

uniform, predetermined amount without regard to the actual impact of the 

developers’ project do not invoke scrutiny as an unconstitutional condition under 

Nollan/Dolan nor under North Carolina precedent.

The Fees assessed in the present case are similar to those assessed in Dabbs. 

The parties agree that, under Section 28(h) of the Ordinance, any landowner who 

wishes to develop a single-family residential lot in the County must pay one-time fees 
ANDERSON CREEK PARTNERS, L.P., V. COUNTY OF HARNETT 

Opinion of the Court

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of $1,000 for water and $1,200 for sewer. Ordinance § 28(h). The Fees are 

predetermined, set out in the Ordinance, and non-negotiable; the Fees are not 

assessed on an ad hoc basis or dependent upon the landowner’s particular project. 

Ordinance § 28(h). The Fees are assessed in conjunction with the landowner’s intent 

to make use of real property located within the County’s jurisdiction, but, unlike the 

conditions imposed in Koontz, the County does not view a landowner’s proposed 

project and then make a demand based upon that specific parcel of real property. 

Koontz, 570 U.S. at 613, 186 L. Ed. 2d at 714 (holding Nollan/Dolan scrutiny applied 

where there is a “direct link between the government’s demand and a specific parcel 

of real property”).

We recognize that Dabbs is distinguishable from the present case in that the 

Fees here were assessed prior to the County’s grant of building permits, thus making 

them a condition of approval. The Dabbs Court expressly based its holding, in part, 

on the fact that the fees at issue were not “a conditional monetary payment to obtain 

approval of an application for a permit of any particular kind[.]” Dabbs, 182 A.3d at 

811. This distinction speaks directly to the types of coercive harms that the United 

States Supreme Court sought to prevent in Koontz: the unconstitutional conditions 

doctrine seeks to prevent the government from leveraging its legitimate interest in 

mitigating harms by imposing “[e]xtortionate demands” which may “pressure a[]

[land]owner into voluntarily giving up property for which the Fifth Amendment 
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would otherwise require just compensation.” Koontz, 570 U.S. at 605–06, 186 L. Ed. 

2d at ___; but see id. at 607, 186 L. Ed. 2d at 709 (“Our unconstitutional conditions 

cases have long refused to attach significance to the distinction between conditions 

precedent and conditions subsequent.” (citation omitted)). Nonetheless, we do not 

find the distinction material in this case. Regardless of whether the Fees were to be 

paid prior to or after the Developers began their projects, the fees were predetermined 

and are uniformly applied—not levied against the Developers on an ad hoc basis—

and thus do not suggest any intent by the County to bend the will or twist the arm of 

the Developers.

Therefore, we hold that the Developers’ pleadings failed to present a 

constitutional takings claim under current federal and state unconstitutional 

conditions jurisprudence as a matter of law. The trial court had no duty to apply the 

unconstitutional conditions doctrine to the Fees; rather, the court needed only ensure 

that, if the County “[did] have the authority to assess user fees to defray the costs of 

[future services to be rendered,] such fees [were not] upheld if they [were]

unreasonable.” Homebuilders Ass’n of Charlotte, 336 N.C. at 46, 442 S.E.2d at 51

(citation omitted).

III. Conclusion

We hold that the trial court did not abuse its discretion in taking judicial notice 

of the 1984 Buies Creek Agreement and the 1998 Agreement. Further, we hold that 
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the 1998 Agreement granted the County the contractual right to exercise the 

Districts’ prospective fee-collecting authority, and the County properly exercised that 

authority in collecting the Fees. We further hold that the Developers failed to present 

a viable constitutional claim because generally applicable impact and user fees, such 

as the Fees in this case, are not subject to the unconstitutional conditions doctrine. 

We affirm the trial court’s Consolidated Order.

AFFIRMED.

Judges STROUD and BROOK concur.